February 28, 2013

Sreedhar

By Ashok Shrimali*
In an authoritative move, top environmentalist-scientist R Sreedhari, managing trustee of the Environics Trust, Mines, Minerals and People (MM&P), has asked Union environment and forests minister Jayanthi Natarajan to urgently cancel the environmental public hearing due to be held on March 5 for the proposed nuclear power plant off Mithi Virdi in Gujarat. Sreedhar believes, the hearing is being held against the backdrop of “non-compliance of key aspects of the terms of reference (TOR) prepared by the Expert Appraisal Committee (EAC) meeting, held on February 14, 2011 for the proposed Mithi Virdi Nuclear Power Plant.” The TOR was handed over to the Engineers India Limited (EIL), who have prepared by the Environmental Impact Assessment (EIA) report for the proposed plant. Sreedhar says, the public hearing has been announced by the Gujarat Pollution Control Board (GPCB) in direct contrast to the policies of your government and the TOR specified by your industry – that prime agricultural land should not be used for industrial purpose. “The location of the site with 78 per cent of double cropped land for the plant not only indicates the lack of sensitivity in the choice of area for acquisition but also that the state and the Nuclear Power Corporation of India Ltd (NPCIL), which has undertaken the project”, he points out, adding, “This would put more people to risk, as settlements would be too close to the nuclear plant.”
The senior activist-scientist says, ”Your Government has repeatedly emphasized the need to identify non-agricultural lands for industrial development and this exercise is more like a fait-accompli. The EIA report does not talk about the impacts of taking away such a huge proportion of prime agricultural land, but on the contrary presents a denigrating attitude towards the farming activities and the farming communities.”
Sreedhar quotes the EIA report on the impact on land to prove his point: “The impact on land environment during construction phase shall be due to generation of debris/ construction material, which shall be properly collected and disposed of. There will be no accumulation of drainage on the higher elevation side as the site will be graded. A garland drain network is developed to collect and route the drain water towards sea. No impact is envisaged due to the same.”
The EIA report goes on to add, “All wastes generated are segregated as solid and hazardous wastes and collected together for disposal. All such wastes will be transported to authorized disposal agency. Accordingly, there shall be no additional load on land environment during operation phase of the project.”
Further: “For establishing soil characteristics within the study area, soil samples from 10 locations were collected and analysed for relevant parameters. The soil of the proposed site is silty loam type. At present, most of the land is under cultivated and sparse scrub vegetation also exists in the study area. However, with the introduction of the project, the land use pattern of the area will improve with neat and clean project buildings, lawns and gardens. The area in the exclusion zone around the project will be developed into a green belt as per the requirements of Atomic Energy Regulatory Board (AERB) and GPCB. This will further improve the aesthetic and land use environment at the proposed project site.”
Pointing out that he does not go into “the gross inadequacies of the entire EIA report and such flimsy statements that are being made in the name of scientific and technical studies and defended by none other than NPCIL”, Sreedhar emphasizes, “If there were specific issues we would have offered it as our submission during the public hearing, but to conduct a public hearing without even adhering to the minimum TOR fixed by the government is a mockery of the process, and hence we seek your intervention to cancel this public hearing and issue strictures to the GPCB for its lack of oversight. The reality is the EIA has not even identified who will be impacted and what will be impacted and to what extent and is a generic document will some data which has neither any use to local understanding or implications.”
Sreedhar says, “One of the issues clearly pointed out in the TOR and is fundamental to any dialogue with public is to know the project affected people (PAP) and the resettlement and rehabilitation (R&R) plan. The point number (xiv) in the TOR states,‘Application of R&R policy may be described. Project affected persons should be identified and rehabilitation and resettlement plan should be prepared.’ The section on R&R in the EIA report is totally hypothetical and does not even say how many households would be affected.”
Sreedhar further quotes from the EIA will to suggest how it is “very obvious” that “a fraud is being played on the public in the name of public hearing”.

The EIA report states: “Preparation of a detailed R&R plan is taken up for compensation to the PAP in line with the National Rehabilitation and Resettlement Policy – 2007 and in consultation with Gujarat State Government for the PAP. Discussions are being held with district collector /commissioner of the concerned area for compensation for land and landed properties.
“The NPCIL policy envisages a special focus on the creation and up-gradation of skill sets of landless persons and other PAPs, who are dependent upon agricultural operations over the acquired land, and for the rural artisans e.g. blacksmiths, carpenters, potters, masons etc., who contribute to the society together, to improve their employability. With the help of district administration, the essential inputs containing lists of land losers and PAPs are being prepared. NPCIL is committed to establish requisite system for organizing vocational and formal training and education for all such identified persons and extend full assistance to them to become eligible for seeking employment with the project proponent or any other organized sector. NPCIL is committed to implement the R&R package as per the mutual agreement with the State Government.”
Comments Sreedhar: “Given the fact that these have yet to be accomplished, why are the NPCIL and GPCB in such a hurry to conduct the public hearing without providing the necessary basic information for a meaningful public hearing? We sincerely hope that you will be seized of this, as you have done in issues of environmental importance and natural justice and order the cancellation of this public hearing and instruct the proponent to furnish at least the basic information relevant to the people.”
Sreedhar further quotes a judgment of the High Court of Himachal Pradesh, in CWP No 586 of 2010 along with CWPIL No. 15 of 2009, which pronounced certain guidelines, which should not be violated. These are:“a) The HP State Pollution Control Board shall ensure that consent to establish is not granted just for the asking. Even at the time when consent to establish is granted the HP State Pollution Control Board, MoEF/EAC shall verify the facts stated in the project report and they shall also indicate to the project proponent what are the para-meters and the laws which the project proponent will have to comply with keeping in view the nature of the project.
“b) The statement made by the project proponent shall not be accepted without verification. It shall also be made clear that if any statement made by the project proponent is found to be false the permissions granted shall automatically stand cancelled.
“c) The Pollution Control Board shall ensure that whenever any public hearing is held, the people of the area are well informed about the public hearing and they are also informed about the benefits and the illeffects of the project. The Pollution Control Board must have its own machinery and own scientists who should give an independent opinion on the pros and cons of the project. These shall also be placed on the website of the PCB.
“d) In future whenever any studies are being carried out by any project proponent while preparing the EIA reports, the study shall be carried out only after notice to the State Pollution Control Board, MoEF/EAC in case the project requires clearance at the central level and also to the inhabitants of the area where such studies are to be carried out and project has to be established. Notice to the public shall be given in the same manner notice of public hearing is given.”
Based on this, Sreedhar, who has sent copies of the letter to all concerned officials of the Gujarat government and the Government of India, concludes, “The NPCIL and GPCB must go back to the drawing board and conduct authentic studies, inform people and then become eligible to conduct the public hearing, until which time no permission should be granted to them including the 21 ha of forest land being sought by the agency.”*Ashok Shrimali is Ahmedabad-based social activist working with NGOs Setu and Samata, and is executive member, Mines Minerals and People (MM&P)

One Billion Rising in Vain

IN HER DEFENCE: Amrita Mohan believes the police action against her will deter other women from fighting back

On 14 February, Amrita Mohan, a BA student of All Saints College, attended a One Billion Rising rally in Thiruvananthapuram, a global campaign to end violence against women. Later that night, she was having dinner at a roadside eatery at the venue, Shangumugham beach, with her family and friends. That’s when three men in a vehicle marked ‘Government of Kerala’ started making filthy comments about Amrita and her friend. Amrita ignored them for a while, but when they kept at it, she lost her cool. “There was an argument. There were several men eating at that outlet, but nobody supported us. When my father tried to intervene, one man in the group pushed him. That’s when I lost control,” she says.

What the eve-teasers didn’t know was that Amrita was an expert in martial arts. She first pulled the man on the driver’s seat out of the car and beat him up. When two others tried to attack her, she thrashed them too. By then, the crowd, too, had joined her and somebody called the police.

Amrita’s action was widely hailed by women’s organisations, individuals and the media as an example for other girls. But there has been a twist in the case. Two of three eve-teasers were contract drivers at the Income Tax Department. So, Amrita has now been booked, on directions of the judicial first class magistrate, under Sections 323,325 and 335 and 332 of the IPC for voluntarily causing hurt and deterring a public servant from discharging his ‘lawful duty’. This invites imprisonment for up to seven years and is a non-bailable offence. The eve-teasers have been charged with lighter, bailable offences.

Women’s organisations wonder how harassing women at night could be ‘lawful duty’. “The police are clearly biased. Though Amrita told them that the men were drunk, they were not taken to a hospital for a medical examination,” says Mercy Alexander, director of Saki Women’s Resource Centre in the city.

Amrita is determined to go ahead with her case against the men. “My only concern is that this action against me by the police and court will deter women. They will hesitate to resist when confronted with a similar situation,” she says.

This report comes from Foil Vedanta’s friend in the court room as the Niyamgiri case continues…

19th February 2013, foilvedanta.com

Last week, the Union Ministry of Environment and Forests (MoEF) filed an affidavit in the Supreme Court in the ongoing Vedanta case, saying the government and not the tribals and forest dwellers will have the final say in diversion of forestland for mining projects. FRA states that forest dwellers cannot be resettled from forestland unless their traditional rights over such land are recognised, and a 2009 order of MoEF had made it mandatory for all the projects which require forestland diversion to obtain consent of the affected gram sabhas (village councils). In December last year, the ministry stated in the court that the forest dwellers protected by FRA cannot be displaced except for protection of wildlife. However, in a change of stance on February 15, the ministry said in the court that consent of the people will be required only in cases where displacement of large number of people is involved and which affect the quality of life of the people. While the ministry did not even mention its 2009 order in the affidavit, it said the mining proposal should not be allowed because Dongria Kondh tribals have been protecting and worshipping Niyamgiri hills for centuries as their sacred deity. Mining on that land will undermine the customary rights of Dongria Kondhs to manage their own affairs in the matter of religion and fundamental right to conserve their culture. This stance provided the Orissa Mining Corporation (OMCL) and Sterlite Industries (the Indian arm of Vedanta) fodder and weakened the case against Vedanta. Clearly, the ministry has backtracked when asked to take a stand on the issue by the court.

The day started with Mr.Sundaram laying arguments for Orissa Mining Corporation (OMCL) and Sterlite Industries, and making a desperate case for why mining should be allowed in the Niyamgiri hills. He stated that the question of ecology and environment had already been tackled in previous judgements in November, 2007 and August, 2008 which had considered all the alleged violations under the EPA and FCA. Hence, this need not be discussed further and the only thing that the counsel needs to counter is the accusation of violation of FRA. Mr.Sundaram stated that there are no individual claims under FRA remaining and all claims had been settled — except 185 pending cases, which however, are not under the ambit of the proposed mining area. At this point, Justice Aftab Alam interjected to say, “Mr.Sundaram, this statement of yours that there is no claim remaining in the mining area is rather suspicious”. To this, Mr.Sundaram went on to rapidly quote a whole string of data about claims which have been settled and about land allocated. Then he said that 6 community claims were made to the Gram Sabha. Out of the 6 cases, 3 cases were claims on “pinpointed” areas and those claims had been settled and 16055 acres were allotted. However, the remaining three claims are for the whole mountain as a sacred hill, which Mr.Sundaram tried to say is not valid, and he went on to make a whole host of ridiculous arguments to prove it. The fact that FRA mandates that forest dwellers cannot be evicted from the land under their occupation till the recognition and vesting of rights under the Act is complete applies to the land under occupation only and not to the undefined territories used by the communities, he said.“Recognition of community rights can be a continuous process”, screamed Mr.Sundaram, “besides, the project is not evicting the tribals from the land under their occupation; the vesting of individual rights is already complete”. He went on to explain how the meaning of “habitat” under the FRA should be read only as occupational right, and not as usage rights to a whole area, in this case, the whole mountain. Territorial right under the FRA, Sundaram claimed, has to be with “holding the land of occupation”, and community right as the “right to specific identified areas”, as in the case of the 3 community claims that have been settled. He further argued that only in the case of occupation, forest rights need to be recognised at the advent. Hence, according to the counsel, the 3 community claims to the whole mountain, “have no merit”. To this, Justice Aftab Alam said that this decision had to be made by the concerned gram sabha. Sundaram vehemently replied, “one gram sabha cannot hold state to ransom” —– “I am the State government, it is my mine and my minerals, my usage cannot be prevented by one gram sabha!” he asserted.

Even more ridiculous than the above arguments was when Mr.Sundaram sought to put forward the case for why the community claim to the mountain as a place of worship is not valid. Mr. Sundaram claimed that the FRA nowhere talks about religion, and hence sacred rights cannot be interpreted into the Act. He said that the FRA is not where scared rights come from, but from Article 25 and other provisions of the Constitution. At this, Justice Aftab Alam asked, “Why are you trying to split up rights? Sacred rights are as much part of identity as any right, which makes it a question of survival. You cannot tell the tribals take your God to another place.” Mr.Sundaram went on trying to desperately prove his point with statements such as this, “Religious right is different. Does your right to believe in all pervasive lord be taken to imply that even the building that we are arguing at this moment is an intrusion into God’s space?”; “Religious right gives you the right to worship, but not the right to property”; “there needs to be atleast a shrine or something, when one’s belief is so intangible and nebulous as in the case of the Dongria Kond, one cannot take it to the extreme in the forms of rights”; “there is anomaly, when you say this mountain is my God and then also graze cattle there”; “these community claims to the whole mountain were instigated by NGOs, it never came from the people”; “the question is how far we can stretch religious rights? Does FRA prevent development?”. This line of argument was also made possible by the weakened stand taken my MoEF in its affidavit in the court, which basically reduced the whole issue of compliance with FRA to the violation of sacred rights of Primitive Tribal Groups (PTGs).

After arguing that religious rights do not include rights to property and that there needs to be tangible limitations to what right to worship encompasses, Mr.Sundaram very cunningly tried to make the case for how the “wrong hilltop” was being talked about. Presenting a map to the judges, he showed to the them how the highest peak of the mountain is not Niyamgiri, but Nimagiri, which is not under the proposed mining area —- “Nimagiri is the abode of their god and there is also some sort of concrete structure of worship at that peak”, he claimed. He talked about how the Saxena committee report had got it all wrong because it says that the Dongria Kond worship the highest peak, which in their report is Niyamgiri, which is factually incorrect. Mr.Sundaram thus, made the submission that the mining site is not the abode of God for the Dongria Kond, as it is not the highest peak. At this point, the bench asked, “So since Nimagiri is the highest point, are you trying to infer that it is the sacred peak and abode?” Mr.Sundaram also gave the judges copies of a 1986 publication by the Socio-cultural Research Institute in Bhuwaneshwar. He read out various passages from this book by ‘experts’, to show that “Niyam Raja is obsolete”, and since there are small structures dedicated to Niyamraja outside every village hut of the tribals, “it is in their houses that the gods are”. Here, Justice Aftab Alam made a very pertinent point, when he said, “Mr.Sundaram, it has happened so many times in history that some learned persons have told people – this is your religion, this is what your belief should be. We have to clarify what the tribals see as their belief.”. It is important to mention here, an exchange that took place in court during this conversation. Mr. Sundaram proclaimed, “Belief is not sacrosanct”. At this Justice Aftab Alam asked, “Bauxite is sacrosanct then, is it?”, to which Mr.Sundaram replied, “No, but Economic Development is sacrosanct. We are talking about one of the most backward districts in the country here.”

During this hearing, Mr.Sundaram also again reiterated the Orissa state government’s grievances on the Saxena Committee report. He mentioned how one hour after the state government had met with Jairam Ramesh raising objections to the report, Mr. Ramesh had gone on to announce the cancellation of mining based on the report. Mr.Sundaram complained that the report was biased, “I only had one meeting with NC Saxena, where he appreciated the implementation of FRA in Orissa as the minutes show”. The counsel also challenged the CEC’s calculation that with expansion of the refinery, bauxite from the mountain will run out in 4years — instead, they argued that it would last for the next 25years. The counsel also brought up the issue of the Mines and Minerals Act, and said how the FRA cannot neutralise the provisions of this Act, as the FRA itself states that it is in addition to, and not in derogation of other Acts. They also argued that the issue of expansion of the refinery is not relevant, as it is a separate matter from mining. The case was also made for rehabilitation and compensation, and about how the mining process will and has already generated employment in the area, while bringing in development and infrastructure in the form of schools, hospitals, roads etc.

20th February

The hearing started with the Solicitor General Mohan Parasaran laying down his case. He stressed how the compliance with FRA needs to be “independently” acknowledged, and final clearance cannot be considered only after community rights have been secured. He also stated that Vedanta was guilty of not only non-compliance, but also of violation of numerous conditions. On being asked by the bench, the Solicitor General Mohan Parasaran listed in a detailed manner a series of 13 violations by Vedanta. Mr. Parasaran said that the court by its Aug 8, 2008, order had granted the clearance only for stage one of the project and the automatic clearance for stage two did not flow from that and it could not be reduced to a mere formality. Mr. Parasaran said the court by its order had itself said that the Ministry of Environment and Forest would decide clearing the stage two of the project in “accordance with law.”

Mr.Parasaran argued that since the meaning of habitat is ambiguous under the FRA, “it should be given the widest possible meaning, so as not to restrict the scope of the right, especially when it is a remedial right. He then elaborated on the ‘integrated’ way of life of the Dongria Kond, and the forms of their livelihood which included grazing, horticulture etc. — making the case for why access and usage rights to the mountain range is important to the tribals in numerous ways. Territorial rights under the FRA thereby, needs to be interpreted “beyond just village boundaries”. During this argument, Justice Aftab Alam asked, “But will tribals continue to be tribals all life? If offered the benefits of the modern age, will they not accept it? Will they live for ages and ages on grazing for their livelihood?”. Here, the Solicitor General, pointed out how the FRA provides for infrastructure and amenities such as schools, hospitals, roads, aaganwadis, drinking water, minor irrigation facilities, tanks, fair-price shops etc. Justice Alam was not convinced, and commented, “These amenities are beneficiary in nature to be provided by the state, what about generation of employment?”. There were other statements such as there from the bench “What if the tribals don’t want to continue how they are living and they want modern facilities?; If 5000 of the 7000 Dongria Kond say that they want development, you cannot tell them that – no you cannot have these modern amenities, as that is not what the FRA expects you to do.; What is it that the tribals really want?”. The bench also commented that it will have to be ascertained how much of the infrastructure and development espoused by Vedanta is actually there on the ground. They acknowledged the possibility that the tribals may want these developmental benefits, but still not want the company Vedanta to be there. To this, Mr.Sundaram from the company’s side interjected saying, “There is NO objection from tribals, my Lord”.

The Solicitor General also read out various sections from the NC Saxena Committee report, which included testimonials from individuals of the Dongria Kond who would be affected by the mining. When one of the testimonial was being read out, Justice Alam expressed confusion saying, “Why are people saying ‘we cannot leave our land’? Why this apprehension that they are going to be displaced, when the company says that there would be no displacement for mining? If the consequence of mining operation is that it will displace the tribals, that is a very serious matter and it demolishes Mr.Sundaram’s arguments from yesterday”. Mr.Parasan responded that even if mining might not be directly displacing the people, it has a severe impact on their lives. To this, Justice Radhakrishnan remarked, “By that logic, we would have to stop all mining in the country”. The Solicitor General argued that it does not always have to be the case, but sought to explain how with respect to Vedanta the consequences of mining would be disastrous on the Dongria Kond. He further read out the section on “Impact of Mining” from the NC Saxena Committee Report to support his argument.

Mohan Parasaran then went on to make the case for how religious and sacred rights come under the ambit of the FRA. He pointed out to clause 3.1.(j) which states “rights….which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State” and to clause 3.1.(l) which states “any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers……….”. He reasoned that religious right in the form of right to their sacred mountain for the Dongria Kond has to be read as a customary and traditional right, which falls under the jurisdiction of the FRA. To this, Justice Radhakrishan enquired, “But the clauses you mention are under the heading of Forest Rights, why include religious right in an Act such as this?”. The Solicitor General responded saying that, “The FRA should not exclude any right for a forest-dweller.” He also referred to a previous court judgement with regard to a case involving Shias and Shunnis, that mentions “customary right to perform religious practice”.

The afternoon session of the hearing started with the Mr.Parasaran reading out the summary of the NC Saxena report, on request by the bench. When he was reading out the paragraph in the report that talks about how no consultations where conducted with the gram sabhas about this project, Justice Alam remarked how it was “a completely opposite picture” to what Mr.Sundaram had presented the day before. When the question about the the fact that the process of determination of rights under FRA had not been completed at the level of the gram sabha, the bench enquired if “the union can vest gram sabhas with such powers that the powers of the State government is nullified”. To this, the Solicitor General pointed to specific articles in the Constitution that empowered gram sabhas in this manner. He also mentioned that given that the mining area is notified as a Scheduled area, gram sabhas here especially have a strong mandate. Vedanta was hence, also guilty of non-implementation of PESA. Also he clarified that MoEF cannot grant clearance unless FRA procedure is fully complete, irrespective of the fact if people have filed claims or not.

The next submission of the day was by Advocate Sanjay Parekh who is representing the tribals in the case. He first expressed his grievance that he had not yet been allowed to present his case, given that the tribals ought to be the main affected party in this case. Mr.Parekh began his submission by quoting a paragraph from the book “Out of This Earth” by Felix Padel and Samarendra Das, where to the question of “What is your religion?”, the Dongria Kond tribal replies, “Mountains”. In fact, the OMC lawyer objected to the reference from this book, saying that it was written by academics and activists who are politically motivated and have led a campaign against Vedanta. Mr.Parekh used this instance to illustrate how we have to understand and be sensitive to the culture and beliefs of the Dongria Kond, as it is very different from the mainstream perceptions of our society. He argued that the determination of the rights vested in this context has to be done by the gram sabha. Just a few minutes after Mr.Parekh had started his submission, the bench bombadred him with a whole host of questions that were steeped in a very poor understanding of tribal issues and values, and also displayed a highly patronising narrative. Some of those questions were – “Have the tribals been made aware of the material benefits that will come to them under the orders of this court? Only once they are aware of this, can they give conscious and informed consent!; Can you read out any section in the NC Saxena Committee report where they have specifically rejected the modern benefits?; The tribals have been living this way of life for hundreds of years, you want them to do that for hundred more years? They cannot remain primitive forever; Are you Mr.Parekh, of all people, trying to say that they are destined to live in poverty for the next hundred years also?; They are being told all negative impacts of mining, the FRA does not ban them from choosing modernity, if they see it as better for them”; As long as this court is there, how can their land be taken away? By an order of this court guaranteeing the benefits of modernity, wouldn’t we undo some of the historical injustice you refer to Mr. Parekh?”. Justice Aftab Alam emphasised that “this court will take utmost cognisance of the wish of tribals, but the wish must be conscious after being made aware of the good and bad impacts of mining”, although he said that “it will not be determinative”. To these various statements, Mr.Parekh tried to make the case for how the bench is using the wrong lens to look at the matter. “If we ask critically, development benefit has gone to whom, My Lord?”, asked Mr.Parekh. He argued how we cannot use the same parameters used for mainstream society to decide on what the tribals want – for instance, for most tribal communities, happiness is not derived from material wants, but from a sustainable way of life that lives in harmony with nature. “This integrated way of living should be protected”, said Mr.Parekh. Mr.Parekh also presented some individual tales of Dongria Kond tribals and their opinions about the adverse effect that the proposed mining will bring to their way of life. At this, the bench interjected to say, “I am sure the other side can present 15 affidavits from members of the Dongria Kond, along with photos, stating how the mining activity will change their lives for the better. One or two incidents cannot demonstrate the larger picture – which is what we are interested in”. Here, Mr.Parekh talked about the pollution of ground water caused by the refinery, and as well as how if the mining started, the source of the rivers at the top of the mountain, which allows for their livelihood and survival will be destroyed. These he claimed are gross and large scale violations of rights which has and will put the survival of the Dongria Kond at stake, and also provides us with a larger picture. Given the unethical practices of Vedanta so far, the Dongria Kond cannot trust the company at all. Mr. Parekh pointed out that “it is the responsibility of the state to provide and facilitate for development. The state has not been doing that, and how can we expect a private company to come in now and do this?”. He also mentioned that even in the case of the Jarava tribes of the Andamans, it was the same debate with regard to development through tourism. In this case, the court decided in favour of protection of the tribals.

The session ended with a short submission by the representative of CEC, Mr. Raj Pajwani, who argued that once mining starts, there might not be physical displacement, but the habitat of the Dongria Kond will be destroyed – “once you cut off the source, then what happens to rivers and agriculture?”, he said. The CEC’s submission also reiterated the various violations of procedure committed by Vedanta.

21st February

I was not present in Court this day. The day started with Mr.Parekh finishing his case on behalf of the tribals from the day before. The CEC also made another submission. It ended with OMC and Vedanta side presenting a response. The final arguments for the case have been laid down now. The bench has reserved judgement on the matter.

A Parliamentary panel today supported government’s decision not to accept marital rape as a criminal offence, saying it could lead to “practical difficulties”.

The Justice J S Verma Committee set up in the aftermath of the Delhi gangrape incident to suggest changes in the criminal law had recommended that the exception for marital rape be removed from the Indian Penal Code (IPC).

“The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape,” the Verma Committee had said.

However, the government did not accept the recommendation in the ordinance promulgated last month. But, it enhanced punishment for sex by husband with his wife during separation without consent from two to seven years.

The Standing Committee on Home in its report on the Criminal Law (Amendment) Bill, 2012 agreed with the view of the Home Ministry that criminalising marital rape would weaken traditional family values in India, and that marriage presumes consent.

“… it has practical difficulties. If litigations are allowed, then the family system will be disturbed,” Committee Chairman M Venkaiah Naidu of BJP said in response to questions.

The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual intercourse without consent is prohibited.

However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Verma Committee recommended that marriage should not be considered as an irrevocable consent to sexual acts.

The decision to exempt marital rape was fiercely opposed by women’s groups.

Committee members D Raja (CPI) and Prasanta Chatterjee (CPM) gave a dissent note for excluding marital rape from the ambit of the Criminal Law (Amendment) Bill saying it was contrary to the provisions of the Constitution which considers all women as equal human beings.

A seven-year-old girl wasraped allegedly by an unidentified man inside a municipal school in the national capital, police said on Friday.The incident took place in Mongolpuri in north-west Delhi last evening and it came to light this morning when the parents of the victims approached police.

The girl received severe injuries and has been admitted to a governmenthospital.

“The victim was raped by a man inside the school campus on Thursday. Her parents approached us this morning and a case has been registered. The victim could not tell us anything about the attacker.

“We are investigating the case. We are questioning the male staff, including teachers and a guard,” a senior police official said.

Enraged over the incident, locals staged protests in the locality.

In her statement to police, the girl said the attacker was not known to her.

Demanding swift action against culprits, residents of Mangolpuri staged a three-hour demonstration outside the local police station Friday morning, leading to traffic chaos in the area. Police had to use batons to disperse the crowds.

Eleven years on, victims of the infamous Gujarat carnage are still awaiting justice. They are still denied of basic rights in their own homeland and forced to live in an alienated state, with 16,000-18,000 displaced persons without secure homes or safe drinking water says Teesta Setalvad, who has been engaged in pursuit of justice for the victims.

The eleven year long journey of legal battle was full of obstacles and miseries, but life imprisonments to 116 perpetrators including former Minister Maya Kodnani was a watershed, says Setalvad. “Perhaps, it was the first time in the history of India wherein perpetrators were brought to justice for targeted communal violence; it has been the only reflection of justice we could see.”

So that the level of conspiracy doesnt stop with Maya Kodnani, the 15 April Protest Petition in the Zakia Jafri case will be very crucial for justice, says Setalvad referring to the efforts to legally pin responsibility for a high level conspiracy for the state wide perpetrated mob frenzy. The Supreme Court appointed SIT headed by RK Raghavan had given a clean-chit to Chief MinisterNarendra Modi and others. “We hope that larger conspiracy will be exposed one day.”

According to Setalvad, the victims of Gujarat carnage still live in the state of alienation where they are being denied even the basic housing, land, and water rights. “We would soon initiate a campaign against such alienation and will send memorandums to various ministries.”

Articulating various challenges being faced in the struggle for justice, Setalvad thanks the targeted community. “The trust and the steadfastness showed by the survivor community was remarkable, otherwise fighting a legal battle with a powerful state – which is equipped with advocates, bureaucrats and all crucial records – isn’t an easy task.”

Indeed, the restless hard-work by our team of advocates and volunteers and the co-operation by the victims have produced some results despite several tough challenges and atmosphere of the hostility created by the opposite parties, she further explained. “bahut hee kam log hain jo lambi ladai ladtein hai” (very few people fight long battles)

Referring to reports of discrimination against the students of minority community in schools and a recent incident at Akshardham Temple, where a Muslim girl student from Kerala was not allowed to enter the temple, Setalvad expresses concerns over unchanged social harmony in the state. The ruling party in Gujarat clearly thrives on a polarised polity ; it was the duty of opposition parties to build social harmony in the state, but it has failed to do so, says Setalvad, who also heads the NGO Citizens for Justice and Peace.

But Teesta sees hope from the Gujarat youths. Citing that the ‘Tale of Tears’- a play by Kabir Thakur on the 2002 carnage – has been attracting youth from all the communities, she says, “there is always hope that a social awakening and realization is out there waiting to happen.”

The Direct Benefit Transfer initiative of the government came in for discussion and scrutiny in Sonia Gandhi-led National Advisory Council on February 26. Nandan Nilekani, Chairperson of UIDAI, sought to assure members that Aadhar will not become a tool for exclusion. After the meeting Aruna Roy, one of the foremost critics of the Direct Benefit Transfer initiative said, “We think it is one of the biggest mistakes this country is making i.e. linking Aadhar to welfare delivery”. Mihir Shah, who also participated in the meeting said, “The same concerns seem to be reflected on both sides about managing the transition which is the real problem that is coming in”.

Following are the issues raised by Aruna Roy at the meeting:

– The UID must not be compulsory:

The UID claims to be voluntary method of proving identity but has now become compulsory for anyone seeking government services or social sector entitlements.

– Direct Benefit Transfers (DBT) only adds more hassles without providing benefits to the beneficiary:

The new architecture of using the UID to access existing cash benefits through the bank has only added an extra layer of complicated and complex procedures and has burdened both the programme as well as the beneficiary with little apparent advantage. As of now, this is being tested out in a miniscule number of schemes but plans clearly exist to impose it on the large delivery schemes such as MGNREGA, Rations and Pensions where it will never work and cause complete havoc. Beneficiaries are not receiving anything new through DBTs. The difference from before is the requirement of a mandatory UID number and biometric authentication for both the application process and for use each time they receive a benefit. Any shortcoming in the process can result in beneficiaries losing their entitlement.

– Dismal performance in two months of roll out:

Despite the effort to depict it as a game changer, and deployment of huge resources and government machinery, the success rate has been dismal and pathetic. Two months after the roll out in 20 pilot districts, the total amount of money transferred nationally has been just 5.5 crores through the Aadhar based payment network. In Ajmer district for instance, out of approximately 20,000 potential beneficiaries, only approximately 220 beneficiaries have so far received money in the bank through the Aadhar based Payment Bridge. None of them as yet have received money through a biometric identification system. Therefore, in fact the Aadhar system has had zero success till date. This is despite the fact that the number of schemes taken up initially have been small and therefore should have been manageable. In the Janani Suraksha Yojna for instance, only a 139 women, out of approximately 1400 who have delivered children in the hospital have received money in the bank through Aadhar. Even their payment has been made without biometrics.

Even if biometrics were a 100 per cent efficient and workable the Aadhar based payment network will clearly take decades before it will cover its targeted beneficiaries. This is because enrollment is very slow, banking infrastructure is very poor and the existing short-comings of the scheme are only compounded by the complications created by this new requirement. When DBT is expanded to cover programmes with a large number of beneficiaries such as NREGA and pensions, it is likely to result in huge exclusions and delays. This anticipated problem is now sought to be overcome through the appointment of 1 million banking/ business correspondents (BC) to reach the money to the poor. The BC can by design be anyone for example, a kirana storekeeper, a selfhelp group, or any individual who manages to get selected. To the extent that these are tried systems, they have not worked. It is a system that will create middlemen and agents with very poor accountability. However, by rolling it out in order to make the UID based payment system viable, there will be huge costs to the state exchequer as well as the poor of this country.

Add to this the problems of biometric identification and it becomes clear that it must be immediately dismantled if the poor are to receive their benefits

2. The technical problems with biometric authentication to cover a 100 per cent of the beneficiary population.

3. The need for online authentication where every transaction is sent in real time and an authentication received even in some of the most remote parts.

4. Because this is a closed system which requires 100 per cent efficiency and verification – in the enumerable cases where the system fails, the solution has been to offer manual override through a variety of means. The fact is as soon as you use manual override in such a closed system, it institutionalises potential leakage and fraud. You get the worst of both worlds – the huge harm, cost, and burden of new all encompassing authentication system and the inability to properly monitor the programme itself.

– Net result is exclusion:

Making access to entitlements for the poor that much more difficult, and in certain cases, excluding them all together.

– Experiment on the poor:

This technology is untried and to experiment on the poor is unjustifiable and because it is de-facto compulsory it is also unconstitutional.

– Failed experiment being pushed through:

The roll out is clearly beyond the stage of experimentation, and is being continued despite abject failures.

– Facilitating Cash transfer, abdication of responsibility of government to deliver:

One possible motive for doing this in the welfare sector is to allow the provision of goods and services to be replaced with cash. In many spheres, including the PDS, people in government have been saying that they are unable to deliver efficiently, without corruption and they would prefer to transfer the cash rather than provide the goods or service. If the government were to replace goods and services with cash, it would clearly be abdicating its fundamental responsibility to deliver.

– Feasibility:

No standards have been set to determine feasibility. Current proofs of concept studies are being conducted by the departments themselves.

– Functioning outside of a legal framework:

Recommendation of standing committee has been ignored, and the UID system pushed through at an alarming speed and scale in a legal vacuum despite objections from parliament.

The potential for people and communities to be profiled: Eventually, whether or not this helps in being an efficient delivery system, the aadhar biometric identification will open up the possibility of profiling individuals and communities in an unacceptable manner. Separate silos of information can now easily be merged, and the information misused. This would also pose a fundamental threat to our democratic fabric and affect the fundamental rights of citizens.

Monitoring in the hands of machines and not local communities: Even the de-duplication being claimed has to be examined. So far, no action seems to have been taken against anyone who has used duplicate identities to pilfer benefits. This method of monitoring does not allow immediate local action and it takes places the entire system in a mode of monitoring far removed from the beneficiaries themselves.

Only UID technology being used to the exclusion of other alternative technologies: This is not to say that technology is not useful if used appropriately and wisely. However, the Aadhar system has no place for any alternative technologies like smart cards or localised biometrics. In many cases these maybe more appropriate and better but the centralized Aadhar monolith cannot make space for such innovation or practice.

After the meeting, Aruna Roy and Mihir Shah spoke briefly to CNN-IBN. Here is the transcript of the interview:

CNN-IBN:Why was Nandan Nilekani present at the NAC meet?

Aruna Roy: Nandan Nilekani came to brainstorm with the NAC. He was supposed to meet us long ago and he hadn’t. We all expressed our diverse, different opinions as usual. Many agreed on some issues, many did not agree on some issues. There were all issues about implementation which were expressed. Some approved, some disapproved but this was not an NAC meeting.

CNN-IBN:What is your position?

Aruna Roy: You know my position very well. We think it is one of the biggest mistakes this country is making i.e. linking Aadhar to welfare delivery. So many of us have written about it, have talked about it.

CNN-IBN:Is the NAC divided on this?

Aruna Roy: This was not an NAC meeting. As individuals we have different opinions, some of us agree, some of us don’t agree.

CNN-IBN:What was Nilekani’s presentation about?

Mihir Shah: Nilekani’s presentation was on the Direct Benefit Transfer scheme and the use of Aadhar in it. And he was very responsive to the concerns of NAC members. The essential concern, I believe is that we need to manage the transition well. There is a situation today when not all beneficiaries of government programmes have Aadhar numbers. There is no internet connectivity in large parts of the country. The other concern was people should not be denied benefits if they do not have Aadhar numbers. The transition to a situation where everyone has Aadhar numbers, bank accounts, and internet enabled bank accounts has to be managed very carefully. This could become means of exclusion rather than inclusion. I must tell you that the chairperson of UIDAI, Nandan Nilekani was very clear in his mind there should be no denial of benefits of anyone who does not have an Aadhar number. In fact, he went to the extent to say that if a person does not have fingers or irises there will be what he called a manual override. Given that that is also a possibility, I don’t think we should be apprehensive about the problems caused by Aadhar in the direct benefit transfer by the government.

CNN-IBN:There are questions about the fact that Aadhar now exists in a legal vacuum?

Mihir Shah: What Nilekani said was that the present legal status of the UID does not prevent it from doing what it is doing today. The legal part of it which is yet to be enacted in Parliament (in fact he asked the NAC to help him expedite the process) does not actually come in the way of doing the work that the UIDAI authority is doing today.

CNN-IBN:Is the NAC divided?

Mihir Shah: At least from the meeting today, I got the impression that there is far greater unanimity than I had imagined myself. Because, I think the concerns are shared. And the concerns are also shared by the UID. I think the same concerns seem to be reflected on both sides about managing the transition which is the real problem that is coming in from Kotkasim and all other examples that are being cited. The problem is that if people don’t have bank accounts, if they don’t have Aadhar numbers obviously you cannot use this architecture to use this scheme. But once you do, a large number of NAC members feel that it is a good initiative

Budget 2013- Gender Gap yet again

What is even more cynical, if not insulting, is the `200 crore allocated for women “belonging to the most vulnerable groups, including single women and widows, (who) must be able to live with self-esteem and dignity”.

Budget 2013, unveiled 10 weeks after the Delhi gang-rape and 10 days before International Women’s Day, was preceded by hope among women that the promises and pledges made by the government to advance their cause would, for once, not remain mere platitudes but be articulated in the single-most important financial document of the year.

The hope was belied. Not only is Budget 2013 gender-insensitive, it in fact strengthens gender stereotyping and reinforces the invisibility of women from the economy in almost every sense of the term.

It is a well documented fact that both the agricultural and the rural sector are heavily feminized, providing a livelihood to four-fifths of all working women in India. Yet, nowhere is this recognized even though the 12th Plan emphatically states that schemes such as Rashtriya Krishi Vikas Yojana (RKVY) will have a special women’s quota, and that single women can form collectives for group cultivation. The latter is an issue that some of us, as part of the Feminists Economists Committee for the 11th as well as 12th Plan have struggled hard for.

Similarly, hugely transformative programmes such as the Jawaharlal Nehru National Urban Rural Mission (JNNURM) and the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) are all “gender-less”. As is the fundamentally democratic issue of gendering governance, what with Panchayati Raj institutions themselves being given such short shrift.

In fact, no economic agency is ascribed to women; they are the predictable, stereotyped, reproductive agents defined as usual in the syndrome of patriarchal semantics. So, therefore, increased allocations to women and their tag-ons both in societal and budgetary terms—children, nutrition and so on. The issue here is not to deny the crucial importance and desperate urgency of even higher funding for these sub-areas, but to give visibility to the independent economic, budgetary, fiscal and financial status of women.

Additionally, the imperative of gendered financial inclusion has been totally trivialized in the form of an all-women bank, which is easier to set up than to gender-sensitize existing banking procedures; it’s something that will marginalize women even more. Gendered financial inclusion can be greatly enhanced by introducing an equilibrium between financial and physical targets; this is especially important in the context of the fact that women generally take small loans, and the fact that while physical targets may be filled, financial disbursements constitute an insignificant amount. Similarly, what was hoped for were changes in other supplementary monetary instruments such as medical insurance policies which currently have different rules for single women and also men who are out of the marital patriarchal slot.

Additionally, individual taxation is preferred because the economic benefit of working depends on how much a woman earns and not the fact of her location in the patriarchal marital structure. The fiscal instrument of an additional tax exemption to women was expected to be re-introduced in order to increase her incentive to take up employment and shift her labour supply curve. Budget 2013 appears to have absolved the State of any responsibility whatsoever of incorporating employment in its current strategy by insisting that women undertake their own economic empowerment through “assisted” self-employment while men may do so by “skill” enhancement.

While it is good that social sector spending has not been negatively impacted by the Budget, already introduced cuts in subsidies on household maintenance commodities such as kerosene and cooking gas have directly affected the time use pattern of women and increased their time poverty. It thus increases the “reproductive” tax that the woman has to pay to the economy as a direct result of change in macroeconomic policies.

The budget asserts that “We have a collective responsibility to ensure the dignity and safety of women…for which Rs.1,000 crore are pledged…(to) the Nirbhaya Fund..,” so-called because Nirbhaya, or fearless, was the fictional name given by a newspaper to the Delhi gang-rape victim who died on 29 December in a Singapore hospital. Money was allocated but no measures were promised to promote the goal.

What is even more cynical, if not insulting, is the Rs.200 crore allocated for women “belonging to the most vulnerable groups, including single women and widows, (who) must be able to live with self-esteem and dignity”. This largesse works out to a humiliating Rs.74 and 07 paise even if this entire amount is spent solely for the benefit of the 27 million female-headed households in the country. This works to even less than that allocated for the setting up of a National Institute of Sports Coaching.

A budgetary gender critique, to be relevant and true, must be located within the context of the paradigm within which the budget is perceived. If the mantra is “higher growth leading to inclusive and sustainable development,” then we need to urgently re-examine all evidence that has points unequivocally to the fact that in the years when the Indian economy was growing at an 8% pace, there was less than 1% reduction in poverty.

The writer is professor and head, Centre for Gender Economics, Department of Economics, University of Mumbai

* Budget Allocation of Rs.37, 300 crores to the Ministry of Health and Family Welfare. Of this, the new National Health Mission that combines the rural mission and the proposed urban mission will get Rs.21,239 crore, an increase of 24.3 percent over the RE.

* Allocation of Rs. 4,727 crores for medical education, training and research

* Allocation of Rs. 150 crores for the National Programme for the Health Care of Elderly. This programme is being implemented in 100 selected districts of 21 States. Eight regional geriatric centers are being funded for the development of dedicated geriatric departments.

* Allocation of Rs. 1,069 crore to the Department of AYUSH for mainstreaming Ayurveda, Unani, Siddha and Homoeopathy through the National Health Mission

* Allocation of Rs.1,650 crore for he six AIIMS-like institutions being set up

* Allocation of Rs. Rs.17,700 crore in 2013-14, compared to Rs.15,850 crore in 2012-13, which is an increase of around 11.7%

* A multi-sectoral programme for reducing maternal and child malnutrition that was announced last year will be implemented in 100 districts during 2013-14 and it will be scaled up to cover 200 districts the year after. Allocation of Rs. 300 crore for the programme in 2013-14.

The Rashtriya Swasthiya Bima Yojana covers 34 million families
below the poverty line. It will now be
extended to other categories such as rickshaw, auto-rickshaw and taxi drivers,
sanitation workers, rag pickers and mine workers.

The Budget proposes a comprehensive and integrated social
security package for the unorganised sector that will benefit the poorest and
most vulnerable sections of society. The
package should include life-cum-disability cover, health cover, maternity
assistance and pension benefits. The
present schemes such as AABY, JSBY, RSBY, JSY and IGMSY are run by different
ministries and departments. The Budget
proposes to facilitate convergence among the various stakeholder
ministries/departments so that we can evolve a comprehensive social security
package

Direct Taxes

Contributions made to the Central Government Health Scheme are
eligible for deduction under section 80D of the Income-tax Act. The budget proposes to extend the same
benefit to similar schemes of the Central Government and State Governments.

Indirect Taxes

The budget proposes to provide for MRP based assessment in
respect of branded medicaments of Ayurveda, Unani, Siddha, Homeopathy and
bio-chemic systems of medicine. There
will be an abatement of 35 percent.

Dr M.V. Ramana is a nuclear physicist who works in Nuclear Futures Laboratory and Programme on Science and Global Security, both at Princeton University. Author of several books on nuclear energy, Ramana recently published The Power of Promise: Explaining Nuclear Energy in India. Excerpts from an interview with

RASHME SEHGAL

Q: Have we in the sub-continent become prisoners of the nuclear dream? Would you say the sustained agitation in Jaitapur and Kudankulam has helped introduce a sharp degree of scepticism around India’s nuclear programme.
A: I think that the nuclear dream is not new and has existed in some form or the other for decades. However, the sustained protest movements in Jaitapur and especially Kudankulam has raised important questions about the social costs of a nuclear expansion.

Q: Can India afford a rapid increase in nuclear energy given the rising costs and also its safety record?
A: The high costs of imported nuclear reactors as well as fast breeder reactors, which constitute the second stage of the three stage programme, imply that a large scale expansion of nuclear power will be incredibly expensive, and unaffordable. For example, the cost of the six proposed EPR reactors at the Jaitapur site is expected to be upwards of `3 lakh crores. The inherent hazards associated with nuclear reactors and deficiencies in the safety culture of the nuclear establishment imply that there is a significant risk associated with each new reactor operated. Thus, the more the number of reactors, the more the risk of a catastrophic accident.

Q: Why is so little known about DAE’s accident record and why is there a veil of secrecy around its programmes?
A: There is some secrecy associated with the nuclear programme, but I think it primarily affects discussions about performance and costs. I have detailed several instances of such secrecy in my book. In terms of the accident record, I think the greater reason for the lack of awareness of the safety hazards is the constant propaganda that DAE officials engage in. They have repeatedly claimed that there is simply no chance of an accident at any nuclear reactor in India. Even though that claim is scientifically not tenable, by being repeated frequently, it creates the impression that all is well.

Q: Again, the problem of disposing of nuclear waste has not been discussed publicly by the DAE?
A: In its public discussions, the DAE has never acknowledged that nuclear waste disposal could be a problem. Its standard response when the question is raised is that they do not consider spent fuel as waste but “a resource to extract plutonium from”. Moreover, they state that reprocessing of spent fuel and vitrification of high level waste is a solution to the whole problem of radioactive spent fuel. But vitrification only helps with storing the high level waste rather than destroying any radioactivity which also has to be disposed off. Reprocessing has various problems associated with it, including the release of low-level radioactive waste into the environment.

Q: India has declining coal and gas energy while the cost of installing renewables is also on the rise. Nuclear energy has been projected a reliable and steady source of energy for an energy-starved nation?
A: Actually the cost of electricity from renewables has been decreasing, and their contribution to electricity generation in India, as well as a number of other countries, has been increasing relatively rapidly, albeit from a small base. Nuclear energy can be described as a steady source, but only in the sense that its share of total energy generation has remained fairly consistent at around 2 to 3 per cent for a couple of decades. Even if it expands, remember that all other sources of electricity generation are also expanding. Therefore, nuclear power is unlikely to become a major source of electricity generation in India for decades.Q: If, as our book has made out, nuclear energy is risk-prone and uneconomical, why was an economist politician like Manmohan Singh willing to risk the survival of his government to push the Indo-US nuclear deal ?
A: I don’t think Manmohan Singh was acting like a hard-nosed economist in pursuing the US-India deal. Instead, his greatest emphasis seems to be on building a sense of trust and credibility with the United States. The importance of this characteristic to the United States is explained by physicist Suvrat Raju thus: “Credible governments are those that do not allow domestic political compulsions to prevent them from adhering to American interests”. Thus, he is still pursuing the idea of importing a number of nuclear reactors, even though they are expensive and untested, without subjecting them to public scrutiny.

Q: Your earlier book Bombing Bombay talked about the enormous loss of life that would entail if Bombay was bombed by a nuclear device? Can such a scenario unfold, given that Pakistan is building up its stockpile?
A: Yes, of course, there is always that risk. While I don’t condone Pakistan’s building up of its fissile material, one must remember that the India has led the arms race in south Asia, and has made various choices that allow Pakistani hawks to make arguments for increasing their fissile material production. Specifically, during the course of the negotiations of the US-India nuclear deal, India got away with keeping its prototype fast breeder reactor outside of safeguards, precisely because it had “strategic” uses, code for saying that it could be used to make about 30 weapons worth of plutonium for the nuclear arsenal. This unsafeguarded source of plutonium as well as the accumulated quantities of reactor-grade plutonium are among Pakistan’s reasons for not stopping its own production.

Q: Is our nuclear energy meant for civilian purposes or is there a strong likelihood that it can be used to make bombs as well?
A: The DAE’s programme is deliberately both a source of weapons materials and nuclear electricity. I don’t think it can be said to be either purely for peaceful or purely for weapons purposes. Though some of its nuclear reactors are under the International Atomic Energy Agency’s safeguards, there are still several reactors classified as strategic. Thus, even if these are not being utilised to make plutonium for weapon right now but the DAE would like to keep its options open.